John Roberts's Law Professor Smackdown

Attorney-client privilege made news outside the Bank of America/SEC context yesterday, in an even higher-profile venue than Judge Jed Rakoff's chambers.

The Supreme Court heard oral arguments in Mohawk Industries v. Carpenter, and the question was whether a party may appeal immediately when ordered to disclose materials it believes are protected by attorney-client privilege.

On one hand, once it's disclosed to the other side, it's out there, so any win of appeal post-judgment will do no good as far as protecting the material. On the other hand, anyone who has spent time arguing with the other side about whether something is privileged or not knows privilege decisions are not as life and death as one may make them out to be. Allowing interlocutory appeals could flood the court system and unreasonably hold up litigation.

And so went the parties' arguments and the justices questions and comments, so we'll have to wait and see how this one turns out. But Tony Mauro of The National Law Journal highlighted one amusing exchange between Chief Justice Roberts and the lawyer arguing against immediate review.

Roberts noted the American Bar Association filed an amicus brief supporting interlocutory review and said, "[H]ere, the lawyers view the value of the privilege and what will happen to it." The attorney responded that briefs from other lawyers, judges and law professors are against it.

"Oh," Roberts replied, "But the law professors aren't the ones who deal with this question on a day-to-day basis and have to worry about going to jail."

Just a tiny smack-down on the theoretical professors from a guy who spent his pre-judge years practicing.